City of New Orleans Praying for the Opening of Philip

The petition in this case sets forth, that the Common Council of the city of New Orleans has passed resolutions declaring its intention to open Philip street from St. Patrick to Claiborne streets, and the streets running perpendicularly to and parallel with the *312river to Claiborne street, in the Fourth District, according- to a certain plan in the Surveyor’s office; and that, after due and legal advertisements, no opposition having been made, the Mayor has been authorized to take the necessary legal stops to carry into effect said intention. The petition concludes with a prayer for the appointment of three discreet and disinterested persons as commissioners of estimate and assessment, as prescribed by the Act of the 3d of April, 1832. J. A. Watkins, J. F. Riib and William T. Gillmore being appointed as such, filed a report on the 14th of October, 1854, setting forth, among other things, that they had employed Hugh Grant, a civil engineer, to make a careful and accurate survey of all the streets proposed to be opened, together with a plan, of the district in whi.h the same wire embraced, in accordance with the resolutions of the Common Council of the city of New Orleans, which survey was made and a plan of the same annexed to their report. This report, showing that the lands and improvements taken for that purpose were separately estimated and assessed, was confirmed by separate judgments signed on the 24th November, 1854. On the 20th of January, 1855, the city of New Orleans took an appeal from these judgments.

On the 20th and 27th of February, 1855, ru'es were taken in the court below upon the Mayor of (he city of New Orleans by J. F. Riib, James D. Gill-more, Wm. T. Gillmore, Hugh Grant and F. Walker, subrogee of J. A. Wat-Icins, to show cause why the appeals thus granted should not be sot aside on the following grounds: 1st. Because said appeals were not taken within the delay allowed by law ; 2d. Because the judgment was rendered by the court upon the motion and at the instance of the said city of New Orleans; and 3d. Because no one has been authorized by the Common Council to take an appeal. The Judge a\ quo discharged the rules thus taken and maintained the appeals.

Several of the appellees have filed motions in this court for the dismissal of the appeal. 'The Commissioners, William T. Gillmore, J. F. Riib and J. A. Watkins' transferree, and the Surveyor, Hugh Grant, claim the dismissal on the following grounds: 1st. Because the appeal was not taken in time to suspend execution ; and 2d. Because the judgments appealed from were rendered upon the motion of the city of New Orleans. The two last named appellees also claim it on the ground of the absence of any prayer in the petition of appeal to have them cited, and that no service of the petitition of appeal or citation has been made upon either of them. This ground is untenable; for the record shows that a copy of the petition and citation was duly served upon both of them. In the report, the compensation of the three Commissioners is fixed at $9,900, that of the Surveyor, Hugh Grant, at $1,320, and that of the attorney at $2,200. The petition praying for the opening of those streets was signed by Thomas R. Wolfe, Fsq., as City Attorney ; and the repoit was confirmed on the motion,of J. Livingston, Fsq., as attorney for the city and Commissioners. The latter is also made a party appellee in this case, the appellant being represented by Messrs. Labatt and Fastis.

The 3d section of the Act of the 3d of April, 1832, on which the proceedings in this case are based, after prescribing the mode in which the assessment of the property taken for the opening and improvement of streets shall be made, provides, that any person whose rights are affected by the report of the Commissioners, may, within ten days, file his opposition in writing to the assessment. After certain proceedings on such opposition, the Act provides that the report made and confirmed by the court “ shall be final and conclusive as well *313upon the Mayor and City Council of 'New-Orleans, as upon all persons and ... parties interested m the lots, lands and premises mentioned in said report, &c. The 6th section provides, “ that said Mayor and City Council shall, within two calender months after the confirmation of the report, pay to the respective persons mentioned in said report, in whose favor any sum or sums of money shall be estimated and reported, the respective sums reported in their favor, and in case of neglect or default, such person, after application made to said Mayor and City Council for payment thereof, may sue for and recover the same with six per cent, interest, &c.”

Whether the Commissioners had any legal authority to pass upon their own claim, or that of others, for services rendered to the appellant or not, is a question which we are not now called upon to determine. We do not think that this section of the statute can be construed to mean that the right of appeal, even in relation to the claims adverted to, is barred by the delay of two calendar months. This delay is clearly applicable to the payment of the sums assessed by the Commissioners, giving to the creditors, after its expiration, the right to proceed by suit against the city. We are clear that the second ground on which the appellees rely for the dismissal of the appeals, is equally untenable. The report of the Commissioners, as we have seen, was confirmed by the court below, “ on motion of J. Livingston, Esq., attorney for the city and the Commissioners.” Under these circumstances, it is obvious that the judgments appealed from cannot be considered as having been confessed by the appellant.

It is therefore ordered and decreed that the motion of the appellees for the dismissal of the appeal in this case, be overruled.